Hopefully you guys can help me as I'm applying to set aside (N244) a Statute Barred overdraft debt (I'm very confident it SB).

The situation is that the CCJ has already been issued at the end of Sept 2016 and currently there is a Warrant of Control in action - which is highly worrying

Whilst I'm confident that the Claimant will not be able to prove its not statute barred - the sticking point seems to be that I didn't receive any mail for this judgement i.e the claim form or default notice etc. I only realized I had a CCJ against me when checking my credit file last month.

The sticking point is that I called and both the claimant and court confirmed my current address and stated they'd sent out numerous mail and have records of this. I do not know how to prove I didn't receive the mail other than me saying I didn't receive the mail.

Its annoying as I know this debt is statute barred (I haven't acknowledged in over 8 years and it defaulted in 2009) and yet because I have no proof I didn't receive the mail the judge may not set aside based only on this.

Any advice? How should I create a good defence for not receiving the mail?

p.s I've already drafted a witness statement, draft order and draft defence which I can attach if necessary. I've also sent an SAR but this takes at least 40 days and its time sensitive due to a Warrant of Control in action and I have a car worth more than the debt which I'm afraid they'll take! (currently parking away from property)

The situation you describe here is not uncommon, a lot of people only find out about a judgment against them when they get a notice of enforcement, an attachment of earnings order or when they check their credit files. It's happened so often, it even made front page news this summer, see here: viewtopic.php?f=69&t=3918

It's almost always impossible to provide evidence of a negative, i.e. that you did not receive something. A CCJ doesn't just happen overnight though, you'd have received a claim form and then a general notice of judgment. Did you not receive any of these documents? You are saying that they seemed to have your current address on record. This should work in your favour, there can be no argument then, that the papers were sent to your last known address because you did not provide the creditor with your current one.

The key issue here is whether it was statute barred at the time the claim was issued. Overdrafts can be tricky in this respect because they fall under s.6 of the Limitation Act 1980 as opposed to s.5 which applies to most other debts like credit cards, etc. because there are no set repayment dates. Even if you had the time to wait for a SAR, most banks will only go back six years.

s. 6(3) LA 1980 wrote:Where a demand in writing for repayment of the debt under a contract of loan to which this section applies is made by or on behalf of the creditor (or, where there are joint creditors, by or on behalf of any one of them) section 5 of this Act shall thereupon apply as if the cause of action to recover the debt had accrued on the date on which the demand was made.

This means that the clock only starts to run when the bank recalls the overdraft by issuing a final demand. Depending on the overdrawn amount and the bank, this may be long after the last payment being made into the current account. In fact, with small overdrafts that build up mostly from charges, the banks may not recall them in a year or more, hoping that you will, one day, use the account again.

How much is this judgment for?

Could you post up what you've written as your defence?

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Hi Michelle thanks so much for getting back to me - its starting to really get to me and completely disrupt my life.

Michelle wrote:It's almost always impossible to provide evidence of a negative, i.e. that you did not receive something. A CCJ doesn't just happen overnight though, you'd have received a claim form and then a general notice of judgment. Did you not receive any of these documents? You are saying that they seemed to have your current address on record. This should work in your favour, there can be no argument then, that the papers were sent to your last known address because you did not provide the creditor with your current one.

No I havent provided the creditor with any addresses over the years - however I was put on the electoral role in the summer so perhaps they obtained my address from this? The claimant (Hoist) and the court both confirmed my current address over the phone. So they definitely have my current address on record. I did not receive any of the documents but they are saying they sent them and have this on their file. I dont know what has happened to them all I know is that I didnt receive them.

Michelle wrote:This means that the clock only starts to run when the bank recalls the overdraft by issuing a final demand. Depending on the overdrawn amount and the bank, this may be long after the last payment being made into the current account. In fact, with small overdrafts that build up mostly from charges, the banks may not recall them in a year or more, hoping that you will, one day, use the account again.

How much is this judgment for?

The judgement is for 3K and almost 2k of that will be charges as I remember the original overdraft topping out at £1100.
There is a default issued against the debt on my credit file from 2009 by MKDP LLP - would this mean a final demand had been issued? - How would I find out if a final demand had been issued?

Thanks again for your help, Ive attached what I've written so far. Its difficult to know what I should leave in and remove. Not sure on the correct wording.

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Lionheart wrote:
No I havent provided the creditor with any addresses over the years - however I was put on the electoral role in the summer so perhaps they obtained my address from this? The claimant (Hoist) and the court both confirmed my current address over the phone. So they definitely have my current address on record. I did not receive any of the documents but they are saying they sent them and have this on their file. I dont know what has happened to them all I know is that I didnt receive them.

There is no argument about it being your fault then, if you didn't receive the papers. Claims are not sent recorded delivery.

Lionheart wrote:
The judgement is for 3K and almost 2k of that will be charges as I remember the original overdraft topping out at £1100.
There is a default issued against the debt on my credit file from 2009 by MKDP LLP - would this mean a final demand had been issued? - How would I find out if a final demand had been issued?

The default would have been recorded AFTER the bank recalled the O/D so it could be safely assumed it was recalled before 2009. If the claim was issued in 2016 then yes, definitely statute barred.

Lionheart wrote:
Thanks again for your help, Ive attached what I've written so far. Its difficult to know what I should leave in and remove. Not sure on the correct wording.

We'll take a look.

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4. The claimant ought to have known the debt was statute barred prior to making a claim and therefore should not have proceeded.

The claimant is a debt purchaser who wouldn't have access to your account history so you can't really say they ought to have known when the debt became SBd.

5. ACCORDINGLY THE Defendant seeks the Claimants claim to be dismissed by the court as the debt is a statute-barred under the Limitations Act 1980, Section 5.

As above, O/Ds fall under s.6, although there's reference to s.5 too, so you could refer to sections 5 and 6 LA 1980 to make it more rounded.

6. The Defendant did not receive any 'Notice of Agreement' and therefore questions the Claimant on rights to issue a claim.

Presumably you are referring to "Notice of Assignment" as there is no such thing as a "Notice of Agreement". Not sure how relevant this is, when statute barred is an absolute defence and the onus is on the claimant to show it wasn't SB at the time they issued the claim.

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Ok I've changed the parts you made reference to in the Draft Defence so thanks for that. Unfortunately I cant remember even approximately the last time I made a payment into the current out so I've instead said: "The last time the Defendant made a payment into this current was before 2009." and "The Defendant has not acknowledged any part of this debt since before 2009." Does this make sense?

I've also removed all reference to Notice of Assignment so SB is the absolute defence.

Do you think my Witness Statement is OK? I've removed a couple of items but I'm unsure on points 6) and 7) and the wording of 9). Should I mention anything else in regards to not receiving the mail?

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If you are going to do the Affidavit as Jason suggested, then that should be also mentioned on your witness statement, where you mention not having received the claim. You'll also need to edit that affidavit if you are going to use it to say you didn't receive the claim form as opposed to a notice of enforcement.

Listen very carefully, I shall post this only once:
Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.Knowledge is Power.

Lionheart wrote:Thanks Michelle you've helped ease my mind a great deal as I was beginning to think it was a hopeless case.

It's not hopeless at all, as long as your recollection of events is accurate. SBd is an absolute defence and the court should grant your application for set aside on those basis. The problem with SBd is that many people forget that they made payments towards their debts later on, when under pressure from DCAs, etc.

Listen very carefully, I shall post this only once:
Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.Knowledge is Power.

Lionheart wrote:Thanks Michelle you've helped ease my mind a great deal as I was beginning to think it was a hopeless case.

It's not hopeless at all, as long as your recollection of events is accurate. SBd is an absolute defence and the court should grant your application for set aside on those basis. The problem with SBd is that many people forget that they made payments towards their debts later on, when under pressure from DCAs, etc.

I'm 99.9% sure I havent made a payment (unless I was in a catatonic state) as I never acknowledged the debt once. I was young, poor and had no help and nowhere to turn so as a way of dealing with it just completely blocked it out of mind. Ultimately it was probably the wrong thing to do.

Lionheart wrote:Thanks Michelle you've helped ease my mind a great deal as I was beginning to think it was a hopeless case.

It's not hopeless at all, as long as your recollection of events is accurate. SBd is an absolute defence and the court should grant your application for set aside on those basis. The problem with SBd is that many people forget that they made payments towards their debts later on, when under pressure from DCAs, etc.

I'm 99.9% sure I havent made a payment (unless I was in a catatonic state) as I never acknowledged the debt once. I was young, poor and had no help and nowhere to turn so as a way of dealing with it just completely blocked it out of mind. Ultimately it was probably the wrong thing to do.

It doesn't sound like it was after all! To reiterate: statute barred is an absolute defence.

Listen very carefully, I shall post this only once:
Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.Knowledge is Power.

Michelle wrote:It doesn't sound like it was after all! To reiterate: statute barred is an absolute defence.

No I suppose things have a way of coming back and biting you on the when you least expect it!

Once I've altered my docs and re-worded the affidavit would you be so kind as to check it for me before I pay the fee and send off? I'm just worried I'll make a fool out of myself and I want to make sure its ok. I guess as I know nothing about this subject its hard for me to be confident in what I'm saying :/

Michelle wrote:It doesn't sound like it was after all! To reiterate: statute barred is an absolute defence.

No I suppose things have a way of coming back and biting you on the when you least expect it!

This shouldn't come back because once a debt is SBd, it cannot be un-barred, not even by making a payment.

Lionheart wrote:
Once I've altered my docs and re-worded the affidavit would you be so kind as to check it for me before I pay the fee and send off? I'm just worried I'll make a fool out of myself and I want to make sure its ok. I guess as I know nothing about this subject its hard for me to be confident in what I'm saying :/

Sure, and you seem to be doing quite well there. You had the right idea about all the requirements for a set aside application, shows you've been doing your homework.

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Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.Knowledge is Power.

Michelle wrote:Sure, and you seem to be doing quite well there. You had the right idea about all the requirements for a set aside application, shows you've been doing your homework.

Hi Michelle

So I've revised the Affidavit Jason provided, Witness Statement and Draft Defence and attached along with the N244 application I've filled in. I'm not sure whether I should include point 6. and 8.(quoting a case) in the witness statement. The documents soon start to pile up!

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It looks like you are making the application at Northampton. The application would be best made to the district registry that issued the writ, or you can apply to transfer the file to your home court. The county court might say they don't have jurisdiction to stay a High Court writ.

jasonDWB wrote:It looks like you are making the application at Northampton. The application would be best made to the district registry that issued the writ, or you can apply to transfer the file to your home court. The county court might say they don't have jurisdiction to stay a High Court writ.

This is an application to set aside the default judgment which was issued by the Northampton Bulk Centre because it didn't reach the trial stage. Once the application is submitted, it will be transferred to the OP's local court as is customary with all defended claims. I agree that the application to stay the writ would have to be made to the High Court but this is a separate application.

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Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.Knowledge is Power.

He may as well make the application on a single N244 to apply to stay the writ and set aside the judgement in the High Court District registry. Otherwise it is the expense of a separate N244 to the county court and an N244 to the registry, or to apply to transfer the claim back down down to county court before applying to set aside.

jasonDWB wrote:It looks like you are making the application at Northampton. The application would be best made to the district registry that issued the writ, or you can apply to transfer the file to your home court. The county court might say they don't have jurisdiction to stay a High Court writ.

This is an application to set aside the default judgment which was issued by the Northampton Bulk Centre because it didn't reach the trial stage. Once the application is submitted, it will be transferred to the OP's local court as is customary with all defended claims. I agree that the application to stay the writ would have to be made to the High Court but this is a separate application.

Hi, I called the county court on Friday afternoon and they assured me that as soon as the application is submitted and fee paid all enforcement action is stayed whilst its being processed.

There is a grey area if the law which it is silent, and that is liability on the enforcement agent for taking an enforcement step when he knew an enforcement step was being taken while the the application to stay was pending.

The enforcement agent will defend such a claim using provision 6(3) of Schedule 12 of the Tribunals Courts and Enforcement Act 2007 which states:

(3)The property in all goods ceases to be bound when any of these happens—

(a)the amount outstanding is paid, out of the proceeds of sale or otherwise;
(b)the instrument under which the power is exercisable ceases to have effect;
(c)the power ceases to be exercisable for any other reason.

There is a grey area if the law which it is silent, and that is liability on the enforcement agent for taking an enforcement step when he knew an enforcement step was being taken while the the application to stay was pending.

The enforcement agent will defend such a claim using provision 6(3) of Schedule 12 of the Tribunals Courts and Enforcement Act 2007 which states:

(3)The property in all goods ceases to be bound when any of these happens—

(a)the amount outstanding is paid, out of the proceeds of sale or otherwise;
(b)the instrument under which the power is exercisable ceases to have effect;
(c)the power ceases to be exercisable for any other reason.

Ok thanks. I don't think any of my assets are bound yet as I've not received a notice of enforcement, I've only received a warrant of control. I also now have an Affidavit signed stating I have not received any mail from the Claimant or County Court although this was to back up a statement I made in my Witness Statement.

You must do whatever it takes to get that application to stay granted. Even if that means going to court in person and going before a master.

If you are in London, then go to the RCJ Strand, at the main entrance (where you see TV Crew and paparazzi), go inside and turn right signed 'Bear Garden'. Its in the East Block, on the First floor go to the Masters Corridor and look for any masters room with a green light. Go in and speak to the lassie at the front bench. Take all your ready made paperwork with you N244, witness statement, evidence pack and a photo ID.

If you are stuck, then there's a solicitor at the RCJ CAB office that can help. The number is: 0203 475 4373 (closes 4pm) and say you are a defendant litigant in person.

Michelle wrote:This is an application to set aside the default judgment which was issued by the Northampton Bulk Centre because it didn't reach the trial stage. Once the application is submitted, it will be transferred to the OP's local court as is customary with all defended claims. I agree that the application to stay the writ would have to be made to the High Court but this is a separate application.

Hi Michelle - did you manage to take a look application docs- does everything look ok to you?

I've paid the fee today and will submit the application so I can clear my head for Christmas. I'll just go with what I've got. I'm not sure if half of what of written in the witness statement is relevant, I feel a bit of a fraud/blagger quoting cases etc

Lionheart wrote:I've paid the fee today and will submit the application so I can clear my head for Christmas. I'll just go with what I've got. I'm not sure if half of what of written in the witness statement is relevant, I feel a bit of a fraud/blagger quoting cases etc

That's fine, it goes to the point. The WS is meant to be your account of the events and you've given them that. Quoting case law is not essential but in this case, it helps paint the picture as to why you think the court should set aside the judgment.

You have a very good case for set aside with a statute barred debt.

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Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.Knowledge is Power.

No, a writ is not the same as a CCJ. The CCJ is the judgment itself, in this case obtained automatically without your case having been heard as you didn't receive the claim form. The writ was obtained to enforce the CCJ. The creditor has a judgment against you but that doesn't mean they've got their money. In the absence of any offers of repayment, they chose to transfer the judgment to the High Court for enforcement, i.e. to make you pay. This is the idea behind it. I realise you didn't offer to pay because you were not aware of the judgment and the debt is SBd anyway. If the judgment is set aside, the writ ceases to exist, you can't have a writ without a judgment but you can have a judgment without a writ. Many people have CCJs and never get a writ because they enter into repayment offers.

Listen very carefully, I shall post this only once:
Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.Knowledge is Power.